Contents
The realm of IT (Information Technology) law, or Cyberlaw, is intricate, particularly without the proper agreements in place. Understanding the legalities is crucial as it forms a fundamental component of any business operating in New Zealand.
Engaging IT professionals is a standard business practice, providing assurance that your objectives are achieved and enhancing your cyber security in an era where it’s increasingly necessary.
When handling vast amounts of personal data and accessing a business’s trade secrets, the importance of confidentiality cannot be overstated. If you’re considering hiring an IT service provider, ponder the following:
- Do I require in-house IT support, or is outsourcing a better option for my business?
- Is it preferable to engage IT professionals on a project basis or for an extended duration?
- What clauses are necessary to protect my valuable trade secrets?
- Will the IT professionals require training to handle our internal systems?
- In the event of a cyber attack, who is liable?
Contemplate these points before finalising any agreements with IT service providers. To grasp how IT can integrate into your business strategy, examine an IT Service Agreement and an IT Support Agreement.
IT Service Agreement
An IT Service Agreement is a contract where one party (the service provider) commits to delivering professional IT services to the other party. Services range from consultations to app development or enhancing your cyber security framework.
To engage a professional IT service provider, whether an individual or a company, you’ll need a robust IT Service Agreement. This outlines the relationship and specifies the scope of work. Clarity from the start helps prevent misunderstandings.
Let’s review the essential clauses.
Services
Discussing the expected services with the provider is paramount. This includes addressing questions such as:
- The nature of services to be provided
- Method of service delivery
- Timeframe for completion
- Required materials
- Amount of data needed (to grant appropriate access)
Payment
The agreement should specify the payment method. Will you issue invoices for each project, or will there be a monthly fee for ongoing services? Are instalments an option?
Payment terms depend on your business model. Invoicing per project suits irregular, short-term work, while monthly payments may be better for long-term, recurring services.
Explaining your chosen payment structure promotes transparency, fostering trust and paving the way for a lasting business relationship.
Intellectual Property (IP)
In the digital realm, safeguarding IP is crucial. The provider may create new software or applications for you, and upon satisfactory completion, you’ll want ownership to distribute the product as your own.
Your contract should stipulate that all ownership rights transfer to you post-completion. If a project is incomplete, the IT service providers may retain ownership, which should be reflected in the agreement.
Duties
Both parties have duties to fulfil for successful project completion. For instance, you may need to provide data access for system development.
Confidentiality
Confidentiality is complex in the online sphere. IT service providers often handle sensitive data, necessitating enforceable contract clauses to prevent misuse of information.
For in-house IT staff, a Non-Compete Clause may be appropriate, preventing them from offering similar services to competitors. With external IT professionals, additional precautions are necessary due to the higher risk associated with their access to internal information.
Understanding confidentiality is vital due to online threats and security risks. More information on maintaining confidentiality in the workplace can be found here.
Termination
Your agreement should outline termination procedures. For short-term contracts, the relationship might end upon project completion and your satisfaction with the results.
Termination clauses also address less favourable scenarios, such as non-payment by the IT service provider, providing a written, enforceable resolution method.
What Is A Custom Software Development Agreement?
A Custom Software Development Agreement is tailored to specific project needs, with particular contract types to consider.
Time and materials
This contract type bases payment on the time invested in the project. While potentially leading to unexpected costs, it often results in higher quality outcomes.
Fixed bid
A fixed fee arrangement ensures payment remains constant regardless of project changes. This is suitable for smaller, less complex projects.
Bonus
Combining a fixed fee with bonuses for early completion incentivises swift project delivery, though it may affect quality. Choose the best option based on your project’s nature.
What Should The Agreement Cover?
A custom software development agreement should include:
- Time and cost – Detail hourly rates, milestones, and deadlines, as payment may hinge on these factors.
- Acceptance criteria – Define clear criteria for ‘acceptance testing’ to ensure the project meets your expectations.
- Warranties – The provider should be obligated to fix or replace any technical issues, as stipulated in the contract.
IT Support Agreement
An IT Support Agreement differs from an IT Services Agreement in that it focuses on technical assistance, such as software troubleshooting. This support can come from in-house or external providers.
A written agreement is crucial for delineating responsibilities and enforceability. It’s especially useful when employing external IT support, setting boundaries on information access, training requirements, and approval for changes.
IT Support may be more regular than project-based services, so consider a fixed fee payment structure for frequent needs.
Confidentiality
Confidentiality is key in IT law. For external IT support, a Non-Disclosure Clause can prevent the disclosure of sensitive information learned during the business relationship.
Next Steps
IT Law is a critical consideration for New Zealand businesses engaging in online activities. Comprehensive agreements are essential to mitigate risks and protect business interests.
For further assistance, contact us at [email protected] or call us on 0800 002 184 for an obligation-free chat.
Get in touch now!
We'll get back to you within 1 business day.
Top 3 Legal Mistakes
Book in a free consultation with us to discuss your legal needs.